The Mumbai-based NGO said that the impugned laws empowered the state “to suppress an individual’s personal liberty” and violated Article 21 of the constitution.
A view of the Supreme Court on November 1, 2018. Photo: PTI/Ravi Choudhary
New Delhi: The Mumbai-based NGO Citizens for Justice and Peace (CJP) has filed a public interest litigation (PIL) in the Supreme Court challenging the constitutional validity of the ‘love jihad’ laws passed by Uttar Pradesh and Uttarakhand.
Last month, the Uttar Pradesh government promulgated the Uttar Pradesh Prohibition of Unwlaful Conversion of Religion Ordinance, 2020 to tackle the Sangh parivar‘s concept of ‘love jihad’, a claim advanced without evidence that there is a conspiracy by Muslim men to convert Hindu women to Islam. As per the ordinance, a marriage will be declared null and void if a woman converts to another religion solely for marriage. Those wishing to change their religion after their wedding need to apply to the district magistrate a month in advance.
CJP’s PIL has been filed against this law and also the Uttarakhand Freedom of Religion Act, 2018, which ostensibly prohibits forceful conversion for the purposes of marriage.
The NGO, which is headed by journalist and activist Teesta Setalvad, in its petition has contended that the provisions of the impugned Act and ordinance empower the state “to suppress an individual’s personal liberty” and hence violate Article 21 of the Indian constitution. The petition also held that both the Act and the ordinance were premised on “conspiracy theories” and assumed that all conversions were being illegally forced upon individuals who may have attained the age of majority.
“It mandates that a series of complicated procedures to be followed before and after conversion, taking the State into confidence to “ensure” that the act was an informed and voluntary decision by the individual. These provisions in both the impugned Act and Ordinance place a burden on individuals to justify their personal decisions for State approval,” it further said.
To this end, the petition cited past judgement in cases like KS Puttaswamy v. Union of India and Shafin Jahan v. Ashokan KM.
It also submitted that the “right to convert” oneself to another religion is manifested in Article 25 of the constitution and the laws in question impinged upon this right by “imposing unreasonable and discriminatory restrictions” on the personal and intimate exercise of one’s right. The plea also said:
“That the Sanatan Hindu faith while not obviously proselytizing have, also from the period of Early India to Medieval India, by co-option absorbed those from Adivasi, Indigenous and Subaltern Faiths that were not until this co-option “Hindu.” Hence as a necessary corollary of the group right of a religion to propagate, an individual must have the right to convert to any religion other than his own.”
It also noted that while illegal conversions under the ordinance attracted a punishment of 1-5 years in prison, if the victim was a minor, a member of the Scheduled Castes or Scheduled Tribes or a woman, the punishment is doubled at 2-10 years behind bars. “That in cases of inter-faith marriages, it is reportedly usually women who convert to men’s religion and it is therefore the harsher punishment i.e. upto 10 years imprisonment which would be invoked in most cases. The provision views all women including economically weak, marginalised, privileged women to be susceptible to illegal conversions,” it said.
Furthermore, the petition said that while the burden of proof is usually on the prosecution to prove the guilt and the accused is treated as innocent until proven guilty, under the ordinance, the burden of proof as to whether a religious conversion took place through misrepresentation, force, or by any fraudulent means or by marriage, lies on the person who has caused the conversion.
“The burden of proof gets shifted and it is dangerous as it is a non bailable offence and also under a circumstance where they are pitched against hostile communities and family members who masquerade in the glory of protection of women,” the plea said and submitted that the impugned laws conferred upon the government the role of protecting religious identities and amounted to intolerance towards the religious choices of the people.
“This, in itself is an attack on the secular fabric that holds Indian democracy together,” it said.
Regarding the impact the impugned laws would have on a woman’s agency, the plea said, “The laws which are anti-conversion are essentially crimes against the autonomy of women, dictating terms on potential suitors from within the woman’s community, caging her constitutional freedoms.”
It cited the Allahabad high court judgement in Salamat Ansari & Ors v. State of Uttar Pradesh & Ors, where it was held that the right to live with a person of his or her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.”To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grownup individual but would also be a threat to the concept of unity in diversity,” the plea said, quoting the judgement.
The laws also violated right to equality and right against discrimination since only residents of Uttar Pradesh and Uttarakhand would be subject to such inquiry and state intervention if and when they decide to convert from one faith to the other.
It also cited the landmark judgement in Bommai v. Union of India (1994), where the court held that citizens were free to profess, practice and propagate such religion, faith or belief as they choose.
A group of lawyers have already challenged the validity of these laws before the Supreme Court, seeking that the laws in question be declared null and void because “they disturb the basic structure of the Constitution”.
A writ petition has also been filed before the Allahabad high court challenging the Uttar Pradesh government’s ordinance.
CJP’s petition has been reproduced below.